1. Briefly, the claimant Tariq Nawaz hired services of AD Firm Sign Services of Installation (the defendant) for installation of a Bill Board of the size 33' 90' at main Railway Station Chowk Faisalabad. In this connection, the parties entered into oral agreement on 16.02.08. In pursuance of the said agreement, the claimant paid to the defendant total consideration amount Rs. 1080000/- in advance and through cheque @ 400 per Square feet for installation of the said Board. The defendant issued final receipt in token of receiving the total amount on 05.04.08. However, the defendant has not installed the Bill Board even after payment of total consideration amount, hence, after delivery of notice to him on 17.07.08, the claimant has lodged this case for recovery of an amount of Rs. 2330000/- as total amount received by the defendant, for confiscation of mental tension and as business loss under section 25 of PCPA 2005.
2. The defendant has vehemently contested the above said claim by filing his statement of defence, interalia, on the grounds that the claim is barred by law of limitation, that the claimant is not the consumer within the definition of section 2 of the PCPA 2005, that the claimant has approached this court with unclean hands, that as the claimant has not paid full amount for installation of Bill Board that, therefore, the case may be dismissed.
3. As this intricate matter involved mixed questions of law and facts, the matter needed evidence, therefore, the parties were required to produce their evidence in support of their respective versions, if so desired. In this regard the claimant has got recorded his statement as PW-1/1, whereas, he has produced Muhammad Rafee and Muhammad Imran through their respective affidavits EX-PW2/1 and EX-PW3/1, respectively. In his documentary evidence the claimant has tendered AD Firm invoice dated 05.04.08 EX-P1, copy of legal notice dated 18.09.08 EX-P2, acknowledgment EX-P3, original postal receipt EX-P4, AD Firm invoice dated 05.04.08 EX-P5, copy of cheque dated 03.04.08 EX-P6, copy of cheque dated 19.04.08 EX-P7, copy of cheque dated 20.02.08 Mark "A", copy of cheque dated 20.02.08 Mark "B", copy of cheque as Mark "C" and "D". In rebuttal, the defendant himself appeared as DW1, through his affidavit EX-DW1/1, whereas, in his documentary evidence he has adduced the copy of suit titled as United Media versus Muhammad Younas EX-D1, copy of order EX-D2, copy of the writ petition No. 4704/08 EX-D3, copy of the writ petition EX-D4, copy of interim order EX-D5, legal notice EX-D6, writ petition No. 587/09 EX-D7, notice as Mark "A" dated July 17.2008, notice EX-D1/A.
4. After conclusion of evidence of the parties, I have heard their learned counsel at length and have scanned the evidence carefully and inestimably.
5. From the contents of the body of the claim, the statements of the claimant's witnesses including himself produced through their affidavits and the circumstances perceived there from, it appears that the claimant entered into an oral transaction with the defendant for the purpose of installation of Bill Board of 30' 90' size at Railway Station Chowk Faisalabad @ 400 per square feet in lieu of total consideration amount Rs. 1080000/-, that the claimant paid the above said amount on different dates in cash and through cheques so as the defendant issued receipt of the above said payment on 05.04.08, but he has not installed the Bill Board despite repeated requests by the claimant that, hence, the services provided by him are faulty and defective. In rebuttal, the defendant has deposed that the contract with the claimant for installation of three Bill Boards at three places, namely, Pull Jhal Khanuana, Tariq Abad Pull and Railway Station Chowk was executed for total consideration amount Rs. 2040000/- and the total amount was to be paid in advance, that in pursuance this agreement the defendant installed Bill Board at Jhal Khanuana Pull and completed the foundation at Tariq Abad Pull, whereas he completed the foundation and purchased structure for installation of the disputed Bill Board at Chowk Railway Station Faisalabad but that the claimant restrained the defendant to install this Bill Board for the reason that one, Muhammad Younas had installed a board in front of the disputed Bill Board as in presence of board of said Muhammad Younas, the claimant's board would be invisible regarding which a case titled as United Media versus Muhammad Younas etc had also been lodged in the Consumer Court at Faisalabad that, therefore, the claimant appeared in this court with unclean hands and also to avoid the part payment with malafide.
6. From the above said scenario, the claimant had to prove the full payment for the installation of Bill Board through his reliable evidence. In this regard, the learned counsel for the claimant has invited my attention to receipt as EX-P1 so as to contend that total consideration amount for installation of Bill Board at Railway Station Chowk Faisalabad stands paid. However, when this version of the claimant is considered in juxtaposition with the opposite version as squeezed from the cross examination of the PW's and the evidence produced by the defendant, it appears that the parties had entered into agreement for installation of three Bill Boards at different places that, therefore, the receipt EX-P1, was part payment of the three Bill Boards to be installed by the defendant. As the onus to prove the full payment rested upon the shoulders of the claimant, therefore, he was to prove the payment of total amount for acquiring services for installation of disputed Bill Board through his reliable and confidence inspiring evidence. Any how, Muhammad Rafee PW2 is ignorant about the disputed agreement. He deposed in cross examination that the claimant paid two installments of Rs 130,000/- and Rs 48,300/- in his presence but that he is ignorant about the payment of remaining amount. Muhammad Imran PW-3 is the business partner of Muhammad Rafee PW2 who is also his "Behnoee" but the credibility of statement of Muhammad Imran PW3 is also in doubt as he seems to be litigant against several Government servants as complainant as an FIR has also been lodged against Muhammad Rafee PW2, by the District Government. Under such circumstance, the full payment of disputed oral transaction has not been proved to my entire satisfaction.
7. From the document EX-D1, it appears that the claimant Tariq Nawaz has instituted claim against one, Muhammad Younas in case titled as United Media versus Muhammad Younas for installation of advertising board in front of the disputed place making him to unable install his advertising board and this claim has sine die been adjourned. This tier of litigation on the part of claimant has not been denied, therefore, it appears that the defendant was restrained by the claimant himself to install Bill Board until and unless the Board installed by Muhammad Younas is removed.
8. For what has been discussed above, the claim is not maintainable on factual planes due to default in full payment of consideration amount by the claimant and due to the above said litigation in between the claimant and said Muhammad Younas therefore, the defendant's services can not be deemed to be defective and faulty in this regard.
9. The legal aspect of the case, as raised during arguments of the learned counsel for the parties, is that the claim is barred by law of limitation as contained in section 28 (4) of PCPA 2005. From the contents of legal notice EX-P2, read with the admission in cross examination of Tariq Nawaz PW1, it appears that the claimant delivered notice to the defendant on 17.07.08, whereas, the claim has been lodged on 20.10.08, therefore, the claim is barred by law of limitation as it was to be instituted within 30 days reckoned from the said date of notice when cause of action accrued.
10. Seen from what ever angle, the claim is not maintainable. The same merits dismissal is hereby dismissed. File be consigned to the record room after its due completions.